Marriage per verba de praesenti was constituted where the parties, without any need of a witness, made a mutual declaration to take each other as husband and wife.
[1] Marriage per verba de futuro subsequente copula was constituted when the parties, having agreed to marry on a future date, had sex.
Circumstantial evidence can be provided to support the claims of the pursuer and the case is determined "on the balance of probability" rather than "beyond a reasonable doubt".
Therefore, for example, evidence of a husband staying in a hotel room with another woman for a night will likely establish adultery, even if sexual intercourse cannot be proved.
[47] The pursuer cannot seek a divorce based on their own adultery[42] and the adulterous sexual intercourse committed by the defender must have been voluntary.
[50] There is no exact list of what behaviour will constitute grounds and the case law is filled with different examples.
The finding by the court that the defender is at "fault" for the divorce will, however, not affect the amount of financial provision awarded or arrangements regarding any children.
[52] According to Stair, the defender to a divorce will often use their granting of consent as a way of bargaining favourable financial provision or arrangements concerning children.
[53] If the defender does not consent to the divorce, then the pursuer will only be able to establish an irretrievable breakdown of the marriage once the couple has not lived together as husband and wife for two years.
[58] The grounds to establish the existence of an irretrievable breakdown of the civil partnership are the same as divorce, except for adultery.
Adultery, as a legal concept, can only take place between a male and female, but if a party in a civil partnership had sexual relations with another person this would fall under the behavioural ground for dissolution.
[59] The finding by the court that the defender is at "fault" for the dissolution will, however, not affect the amount of financial provision awarded or arrangements regarding any children.
[60] While a couple are married or in a civil partnership they owe an obligation to financially support one another called "aliment".
[61] Aliment, as a legal obligation, can be enforced by the court up until the point that the marriage is brought to an end by divorce or the civil partnership is dissolved.
The Family Law (Scotland) Act 1985 sets out detailed provisions on what assets the court can deal with and what considerations are to be taken into account when making any award.
According to the Scottish Government it is a common misunderstanding in Scotland that a couple will have established a common-law marriage after having lived together for a certain period of time.
[66] The 2006 Act creates a legal presumption that each party will have an equal share in household goods (excluding motor vehicles and money) acquired during the cohabitation.
[67] The parties are also presumed to have an equal share in any allowance or account created for joint household expenses.
[65] This right can also be used in certain circumstances to block the party who owns the property from selling it and stop a bank from repossessing the home under a mortgage.
However, in the event of a breakdown of a cohabiting couple's relationship, one party can ask the court to make an order for financial provision in certain circumstances similar to divorce and dissolution cases.
[71] The age of majority in Scotland is 18 years old[72] but under Scots law other criteria, such as the child's level of maturity and understanding, will sometimes also be relevant.
[87] Only a father who is married to the mother at the time of conception or subsequently before the birth, automatically acquires parental responsibilities and rights.
From 4 May 2006, with the introduction of the Family Law (Scotland) Act 2006, a father named on the child's birth certificate also automatically obtains responsibilities and rights.